'Do not call' list fights back

NEW YORK
— Despite a federal court's ruling this week putting on hold the national Do Not Call Registry, the consumer rebellion against intrusive marketing may be only just beginning.

Faced with evening calls from strangers, an e-mail onslaught of spam, and mailboxes overflowing with bulky catalogs, fed-up Americans appear ready to draw a clear boundary. They want their castles, particularly at dinnertime, to be their own private realm.

The chance to opt in to a federal do-not-call list - the first such effort on a national scale - was expected to be popular, but few foresaw just how popular: By Oct. 1, the registry's start-up date, it is expected that 60 million Americans will have signed up, that's more half of all households with telephones.

In this context, experts say the legal decision this week in favor of telemarketing companies is likely to be only a "speed bump" on the road to greater privacy from sales pitches. Congress is already moving to fix the problem with legislation, and the Federal Trade Commission is forging ahead to implement its program, counting that it can win on appeal.

The backlash against the direct-marketing industry doesn't mean the typical American is opting out of his or her consumer lifestyle. But, faced with more than 1,500 advertising pitches a day - three times as many as in the 1960s, that consumer is more than ever looking for a haven. In particular, people want a reprieve from things that require work - like answering the phone, or wading through unwanted e-mails.

"The do not call list is just another manifestation of Americans deep-seated concerns over privacy," says Peter Tuckel, a professor of sociology at Hunter College. "Americans feel their privacy has been invaded, so they've adopted an array of technological tools to combat this problem. It started with answer machines and caller ID. Now there's a whole array of new technologies to cope with it. It's all a manifestation of the same underlying concern, which is to try to preserve come kind of privacy in the home place."

That desire has spread to Americans' computers as well. California recently passed a law that forbids spammers to send e-mail unless a consumer specifically says they want to receive it. Similar, but less-comprehensive legislation, is pending in Congress. At the same time, more consumers are installing filtering software, and large computer firms like Microsoft are joining in the fight against spam. In addition to clogging up bandwidths, e-mail pitches like telemarketing have become a serious nuisance at work and at home.

"They're extremely noxious and intrusive because they have to be dealt with," says Peter Crabb, a professor of psychology at Penn State University in Abbington. "It's important for consumers to take a stand, whether they think they have power or not, and to some extent, they are."

The telemarketing industry is pushing back. In addition to the case just ruled on in Oklahoma, at least two other court challenges to the federal registry are outstanding. One attacks it on First Amendment grounds, charging it creates two inequitable categories of speech by exempting charitable organizations, politicians, and pollsters from the ban on calling.

The telemarketing industry also contends that do-not-call will have disastrous consequences on a fragile economy, potentially throwing tens of thousands of low-income workers out on the street. It claims industry generates $660 billion from sales each year, although the Census Bureau puts the number closer to $8 billion a year.

Critics are quick to point out the discrepancy. "The telemarketing numbers are wholly made up. [They would mean] the average US household spends $6,000 a year on telemarketing," says Chris Hoofnagle, associate director of the Electronic Privacy Information Center in Washington D.C. "Call centers also have no loyalty to workers. They are the first to outsource ... to the Philippines and India."

The industry stands by its numbers, and says many Americans like getting telemarketing calls. At the same time, telemarketers recognize they have a serious public relations problem on their hands, and that something has to change.

"Consumers don't mind getting calls from companies they decide to do business with - that's where things need to change," says Steve Brubaker, senior vice president InfoCision Management Corp., a telemarketing company. "When I'm remodeling my house, I love getting calls from people offering equipment or deals for that. But after I'm done, I no longer need it."

Mr. Brubaker says consumers should have a choice.

New York actress Brennan Walker agrees, but she'd like the choice the federal registry already offers. "People have the right to state that they don't want to be called at home," she says. "It amounts to harassment."

The registry might well go into effect on Oct. 1, despite the Oklahoma Court's ruling that the FTC had over-stepped its authority in creating it. The FCC has the legal authority to implement the laws, which were approved by Congress and President Bush early this year.

This means that businesses cannot count on the ruling to change anything in the long run. And businesses will still have to prepare to comply with differing FTC and FCC laws as well as laws in place in 24 states. "Everyone is confused," said Bob Traylor, President of Do Not Call Protection, a company that provides compliance solutions for do-not-call laws. Traylor cites a preexisting relationship exemption, in which a business can contact a person for up to 18 months after doing business with him or her. Though this exemption exists under FTC laws, states such as Illinois don't have the exemption. Companies that violate these laws can face $500 to $25,000 in fines.

These fines will be a major blow to businesses, according to Mr. Brubaker, senior vice president of InfoCision Corp., a party to the suit against the FTC. "This is going to put some companies out of business."

In Idaho, Mary Smith still wants peace at dinner. Despite being signed up for the state's do-not-call list, Smith received five telemarketing calls on the day of the Oklahoma ruling, due to exemptions such as preexisting relationship. Though she doubts the national call list will make a difference, she says she will sign up in hopes that it does. "How do I feel when they call? I hang up. That's how I feel."